U.S. Constitutional Law I(T) — Syllabus
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- Optional: Election 2020 Materials New!
- Presidential Incapacity and Candidate Withdrawal or Death:
- Lara Seligman & Natasha Bertrand, Trump’s health condition highlights gaps in the 25th Amendment, Politico, 10/3/20
- Garrett M. Graff, What Happens If Pence Needs to Become ’Acting President‘?, Politico, 10/4/20
- Joshua Tucker, We’re in the final stages of the presidential election. What happens if a candidate withdraws or dies?, Washington Post, Oct. 2, 2020
- Counting Electoral Votes:
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For all the assignments in this syllabus, I suggest that you read over the questions about the material posted on the Current Assignments page before you begin reading the material, and then go over the questions after you have read the material. We may not discuss every single question posted on the Current Assignments page, and I may ask questions in class that I haven’t posted, but in general the questions on the page will reflect what we’re going to go over.
I. Introduction to the Study of Constitutional Law
In this section we will take a first look at some basic themes of the course: (a) What does it mean to have a constitution? What approach to writing a constitution is best? (b) How should a constitution be interpreted -- as a pure text? In light of changing times? According to the framers' intent? (c) What were the circumstances of the adoption of the U.S. constitution? What bearing if any do they have on contemporary constitutional law?
A. Emergency and Power
1. Textual provisions
The U.S. Constitution, CB xxxix-liii
The Canadian Charter of Rights and Freedoms, Supp. 1-7
Constitution of the Republic of South Africa (excerpts), Supp. 8-16
Supp. 17-21 (readings by Bulmer, Forte)
2. Elections and Emergencies
Supp. 22-24 (readings by Elias, Primus)
CB 952-959 (Home Building & Loan Assn v. Blaisdell & the Contracts Clause)
Supp. 30-33 (Jacobson v. Comm. of Massachusetts)
Supp. 34-36 (South Bay United Pentecostal Church v. Newsom)
Supp. 37-42 (Letter to City of Miami Beach re Panhandling Ban)
B. Approaches to Constitutional Interpretation
1. Text and Intent versus Fundamental Rules and Principles
a. Textualism and Original Intent: Heller v. District of Columbia
b. Does the Text Tell Us Everything? Reference re Secession of Quebec
Supp. 43-54; CB 87-88, CB xliv (Art. II § 2 cl. 1)
2. The Bank of the United States and the Powers of the Federal Government
CB 56-69; CB 176, CB 372-373 (note 6) (U.S. Term Limits v. Thornton)
Supp. 55-59 (reading by Lynch), Supp. 60-62 (Dudgeon)
C. The Adoption of the U.S. Constitution
CB 392-394 (Curtiss-Wright)
II. The Role of the Federal Courts in the Constitutional Framework
In this section we will examine closely the role of the courts in interpreting and enforcing the Constitution, with particular attention to judicial review (i.e., the power of the courts to declare a statute or regulation unconstitutional). As part of this examination we will look at the Supreme Court’s early use of judicial review. We will also consider the power of Congress to limit judicial review, and the self-imposed restraints that the courts put on their power of judicial review (through doctrines such as standing and political question). As with everything we cover, we will also cast a critical eye on the Supreme Court’s handling of its role, with close looks at the reasons for its holdings and arguments for and against them.
A. The Origin of the Power of Judicial Review
1. Marbury v. Madison
Supp. 63-66 (pardons)
Background on Marbury v. Madison (optional)
Susan Low Bloch, The Marbury Mystery: Why Did William Marbury Sue in the
18 Const. Comment. 607-627 (2001) (optional)
2. Martin v. Hunter’s Lessee
Supp. 67-68 (The Judiciary Act of 1789, § 25)
B. The Early Roles of Judicial Review
1. Judicial Exclusivity in Constitutional Interpretation
2. Natural Law, Slavery, and Judicial Review
CB 69-73, 465-470 (State v. Post), CB 470-474 (Dred Scott v. Sandford)
CB xxxiv, xlii, xlvi, xlvii [Art. I § 2 cl. 3, Art. I § 9 cl. 1; Art. IV §§ 2, 3; Am. V]
Kat Eschner, President James Buchanan Directly Influenced the Outcome of the Dred Scott Decision,
Smithsonian Magazine, March 6, 2017 (optional)
C. Limitations on the Powers of the Federal Courts
1. Political Control of the Supreme Court
a. Amendments, Appointments, Impeachment
CB 73-79; Supp. 71-81
b. Control of Jurisdiction
2. Advisory Opinions, Standing and Political Question Doctrine
a. Advisory Opinions
CB 87-88 (review); CB xliv (Art. II § 2 cl. 2)
i. Lujan v. Defenders of Wildlife
CB 114-115 (notes 1 and 2); CB 89-97
ii. Widely Diffused Harms
CB 121-124 (Note e)
iii. Conceptualizing Injury
CB 115-118 (Notes 3.a and 3.b) (“Injury in Fact” and “Injuries to Third Parties”), 124-128 (Note 4) (“Nexus”)
CB Supp. 15
iv. Prudential Standing Limitations
CB 132-135 (Notes 1 & 2) (“Prudential Standing and Injury in Fact” and “Prudential Concerns and the Political Process”)
c. Political Question Doctrine
d. Ripeness & Mootness
III. Separation of Powers: The Allocation of Powers within the Federal Government
In this section we will examine the allocation of power within the federal government. We will begin with a look at a major case (Youngstown) that provides a good vehicle for thinking about how to approach constitutional interpretation and the proper role of the courts in this area. We will then take closer looks at separation of powers in foreign affairs and domestic contexts. In the domestic context, one of the areas we will look at relates to the role of “independent” administrative agencies such as the Federal Trade Commission or the Securities and Exchange Commission. It helps to have some familiarity with how the federal government is structured today. If you are unsure whether you need more background, there are many online sources you can consult. One very basic one is this on-line, free textbook, Documents of Freedom, Unit 3 (The Structure of the National Goverment). You might also consult American Government, §§ 8a, 8b, and 8c.
CB Supp. 61-62
B. Approaches to Determining the Distribution of Federal Powers
CB Supp. 62-64
C. The President, Congress, and Foreign Affairs
1. Executive Authority in Foreign Affairs
CB 392-394 (review)
b. Dames & Moore, Medellin, and Zivotofsky
CB 394-401, 419-421
2. Warmaking Authority
D. Domestic Affairs
1. The President
a. Executive Privilege, Immunity, and Impeachment
i. Executive Privilege
CB 421-425 (through Note 1.a); CB 428-429 (Notes 2 and 3)
ii. Immunity from Civil Process, Civil Suit, and Damages
CB 425-428 (Notes 1.b & 1.c); CB xli [Art. I § 6 cl. 1]
CB Supp. 71-91 (Trump v. Vance), 91-103 (Trump v. Mazars, USA)
iii. Impeachment; Indictment
CB Supp. 69-71
2. Nondelegation/Administrative Authority
Optional Background: American Government, §§ 8a, 8b, and 8c
a. Nondelegation Doctrine
CB Supp. 103-111
b. Administrative Authority
CB 445-448, 459-460 (Note 4 (Double Insulation))
3. Administrative Agencies and the Separation of Powers
a. Textualist/Strict Separation/Nondeferential Approaches
i. INS v. Chadha
ii. Bowsher and Metropolitan Airports
CB 448-450, 457 (Note 1); CB 462-463 (Note 6)
b. Pragmatic/Deferential Approaches
i. Morrison v. Olson
CB 450-457; CB 457-458 (Note 2)
CB Supp. 75-76
CB 458-459 (Note 3 (Mistretta and the “Twilight” Area))
c. Casting Deference into Doubt
CB Supp. 113-127
IV. Federalism: The Allocation of Powers between the Federal and State Governments
In this section we will examine the allocation of power between the federal government and state governments. While U.S. history and the history of constitutional doctrine are important throughout the course, this is one area where we will particularly examine the evolution of doctrine. The question of federalism is mediated primarily through interpretation of the Commerce Clause (Art. I § 8 cl. 3, CB xli), and that interpretation has changed markedly over time and remains in flux today. We will also take a look at some other federalism issues, such as those raised by the power to tax and spend. It helps to have some overall familiarity with the roles of federal and state governments today. If you are unsure whether you need more background, there are many online sources you can consult. One very basic one is this on-line, free textbook, Documents of Freedom, Unit 3 (State and Local Government).
A. The Purpose of the Commerce Clause / The First Period of Interpretation
B. Before the New Deal: The Second Period of Interpretation of the Commerce Clause
C. The New Deal and Its Legacy: The Third Period of Interpretation of the Commerce Clause
D. Contemporary Interpretations of the Commerce Clause
E. The Power to Tax and Spend; Other Powers
V. Federalism: Constitutional and Federal Statutory Limits on State Power
In this section we will examine one area of federalism that is seemingly modest, but with great implications for reglation of the environment, labor, business, consumer, and other matters. The basic questions are these: (a) where Congress has not regulated a matter that it has the power to regulate, should the federal courts enforce limits on state regulation that might be thought to overstep state power? (b) Where Congress has regulated, to what extent does the federal regulation preclude states from regulating in the same area?
A. Introduction: Federal Limits on State Regulation
B. Dormant Commerce Clause: Strict Scrutiny of State Burdens or Restraints on Interstate Commerce
C. Dormant Commerce Clause: Scrutiny of Facially Neutral Statutes